June 25 --
In another 5-4 squeaker, the U.S. Supreme Court ruled Monday that the EPA acted appropriately in granting Arizona the authority to operate its own Clean Water Act pollution permitting program without first taking into account the risk of harm to endangered species.
The decision overturns an August 2005 ruling by the 9th U.S. Circuit Court of Appeals.
The consolidated case, which put a spotlight on water-poor Arizona, pitted Defenders of Wildlife against both the Environmental Protection Agency and the National Association of Home Builders. In 2002, the EPA granted the Arizona Department of Environmental Quality the authority to operate its own Clean Water Act pollution permitting program. Such authority has been granted to 40-plus states.
The case was argued before the Supreme Court April 17, almost two years after a ruling by the 9th U.S. Circuit Court of Appeals requiring the EPA to revisit that action. Those judges said that the agency acted arbitrarily and capriciously by not meeting its statutory duty to take the Endangered Species Act into account when transferring permitting authority.
In issuing the majority opinion, Justice Samuel Alito Jr. was joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer sided with the dissenting opinion written by Justice John Paul Stevens. Justice Breyer also filed a separate dissenting opinion.
"We´re very pleased with the ruling," NAHB Duane Desiderio said during a brief telephone interview Monday. "It´s appropriate for states to be the permit issuers because they understand water issues within their borders."
Defenders of Wildlife had argued that EPA authorities created a "gaping loophole" by changing their pattern of consulting with experts from the U.S. Fish and Wildlife Service, which oversees the Endangered Species Act, before turning over permitting authority to states.
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